[2017] KEHC 9011 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION

MISCELLANEOUS CIVIL APPLICATION NO. 477 OF 2016

IN THE MATTER OF AN APPLICATION BY BENSON KAMAU NDEGWA AND KENNEDY NDEGWA KAMAU TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF ARTICLES 22, 23, 165(3)(a) AND (b) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE RESPONDENT’S DECISION OF 9TH SEPTEMBER 2016 TO ARBITRARILY ARREST AND DETAIN THE 2ND APPLICANT UP TO 11TH SEPTEMBER, 2016 AND THE RESPONDENTS DECISION TO ARREST CHARGE AND ARRAIGN THE APPLICANTS IN COURT ON 10TH OCTOBER, 2016 ON TRUMPED UP CHARGES

BETWEEN

REPUBLIC …………………………………………………………APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE ………….....……1ST RESPONDENT

OFFICER COMMANDING STATION (O.C.S)

CENTRAL POLICE STATION, NAIROBI.……..........…2ND RESPONDENT

JACOB ONYANGO OWUOTH ………..…......…………3RD RESPONDENT

AND

JARED MUTUKU …………………………....……1ST INTERESTED PARTY

JANET MUTUKU …………………………....……2ND INTERESTED PARTY

EX PARTE:

BENSON KAMAU NDEGWA

KENNEDY NDEGWA KAMAU

JUDGEMENT

Introduction

1. By a Notice of Motion dated 21st October, 2016, the applicants herein, Benson Kamau NdegwaandKennedy Ndegwa Kamau seek the following orders:

(i) An order of Prohibition directing the Respondents, their servants, employees or agents from arresting, harassing, arraigning or charging the applicants or undertaking any further action and interference, violation or infringement with the Applicants’ freedoms or fundamental rights whatsoever.

(ii) An order of Certiorari to remove into this Honourable Court to quash the decision and action by the Respondents to arrest, charge and arraign the Applicants in court on 10th October, 2016 or any other day thereafter on trumped up charges.

(iii) That costs of this application and the entire proceedings be awarded to the ex-parte applicant.

Applicants’ Case

2. According to the applicants, they are father and son respectively. According to the 2nd applicant who is the 1st applicant’s son, he came to know the 2nd interested party after being introduced by the 1st interested party.

3. According to the 2nd applicant, on 7th September, 2016 at 11. 00am or thereabout at Java House Westgate Nairobi, he was conned and swindled an amount of Kshs.12,000/- by people unknown to him in the presence of the 1st and 2nd interested parties who were also simultaneously conned and swindled Kshs.8,000/- and Kshs.170,000/- respectively.

4. It was averred that the said conmen had promised to completely change the 2nd applicant’s fortunes and that of the two (2) interested parties by multiplying the money in issue totalling Kshs.190,000. 00 – a lie which the interested parties and him unknowingly fell for. Immediately after the conning ordeal, the 2nd applicant together with both the interested parties after consultation decided to seek Police intervention and assistance whereby the 2nd interested party promised to use her Police connections to recover the money.

5. The 2nd applicant averred that 9th September, 2016 the 2nd interested party called him and informed him that she had managed to get the Police assistance and requested the 2nd applicant to meet her at Sky Restaurant located along Tom Mboya Street Nairobi town. Immediately upon arriving at the said hotel the 2nd applicant was immediately arrested and handcuffed by the 3rd Respondent in the presence of the 2nd interested party without any explanation or introduction and in total violation of his fundamental rights and principles and without applying the principles of Natural justice proceeded to condemn him unheard and then had him locked up at Central Police Station for 3 days up to 11th September, 2016.

6. It was averred that the 1st applicant on knowing about the 2nd applicant’s arrest immediately visited Central Police Station where he was directed to the 3rd respondent’s offices and while sitting in that office he overheard the 3rd respondent advise the interested parties that they had no case against me although he would assist them in the recovery of the money anyway. At this time the 3rd respondent was not aware of the relationship between the 1st and 2nd applicants.

7. The 2nd applicant averred that the 3rd respondent later told and informed the 1st applicant that the 2nd applicant would only be released if he paid Kshs.170,000/- to the 2nd interested party. The 1st applicant desperately managed to borrow Kshs.20,000/- which he paid as cash bail to the 3rd respondent on 11th September, 2016 and the 2nd applicant was later released but no receipt was issued. It was deposed that immediately after the 2nd applicant’s release, the 3rd respondent piled a lot of pressure on the 1st Applicant to pay up until the 1st applicant was admitted to Nairobi hospital on 20th September, 2016, where he stayed until 28th September, 2016 but the 3rd Respondent did not relent on his demands and threats.

8. The 2nd applicant averred that the 3rd respondent who has proved to be a friend of the 2nd interested party threatened even in the presence of the 2nd respondent to open multiple charges against the Applicants either individually or jointly if the sum of Kshs.170,000/- is not paid in full while ignoring the fact that the 2nd applicant was also a victim of the conning and lost money in the circumstances and are determined to make the applicants pay up money which they were not involved in misappropriating in anyway.

9. It was therefore the applicants’ case that unless this Court grants the orders sought they will suffer gross violation of their fundamental rights and freedoms as the Respondents and the interested parties are determined to harass and intimidate the applicants to pay up the Kshs.170,000. 00 which they were not involved in misappropriating in any way.

Respondents’ Case

10. The application was opposed by the Respondents.

11. According to them, the 2nd applicant was arrested on Friday the 9th September, 2016 and was due to be arraigned in Court on Monday 12th September, 2016 but was released on cash bail of Kshs.20,000/=.

12. The Respondents however denied being aware that the 2nd applicant was also a victim of conning since he had not shown that he reported the matter anywhere and therefore it is an afterthought to derail the pursuit of justice for the interested party.

13. It was averred that the relationship between the 3rd Respondent and that of an investigator and a reportee and nothing else.

Determination

14. I have considered the material presented before the court in the instant application.

15. It is therefore clear that this Court has the power and indeed the duty to bring to a halt criminal proceedings where the same are being brought for ulterior motives or for achievement of some collateral purposes notwithstanding the constitutional and legal powers conferred upon the DPP and the police. In Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, the Court of Appeal held:

“It is trite that an Order of Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...Equally so, the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has the an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”

16. In Meixner & Another vs. Attorney General [2005] 2 KLR 189,the same Court expressed itself as hereunder:

“The Attorney General has charged the appellants with the offence of murder in the exercise of his discretion under section 26(3)(a) of the Constitution. The Attorney General is not subject to the control of any other person or authority in exercising that discretion (section 26(8) of the Constitution). Indeed, the High Court cannot interfere with the exercise of the discretion if the Attorney General, in exercising his discretion if acting lawfully. The High Court can, however, interfere with the exercise of the discretion if the Attorney General, in prosecuting the appellants, is contravening their fundamental rights and freedoms enshrined in the Constitution particularly the right to the protection by law enshrined in section 77 of the Constitution... Judicial review is concerned with the decision making process and not with the merits of the decision itself. Judicial review deals with the legality of the decisions of bodies or persons whose decisions are susceptible to judicial review. A decision can be upset through certiorari on a matter of law if on the face of it, it is made without jurisdiction or in consequence of an error of law. Prohibition restrains abuse or excess of power.”

17. Whereas the mere fact that the facts of the case constitute both criminal and civil liability does not warrant the halting of the criminal case, in Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703, it was held:

“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of the court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth...When a remedy is elsewhere provided and available to person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement. For in a criminal case a person is put in jeopardy and his personal liberty is involved. If the object of the appellant is to over-awe the respondent by brandishing at him the sword of punishment thereunder, such an object is unworthy to say the least and cannot be countenanced by the court... In this matter the interested party is more actuated by a desire to punish the applicant or to oppress him into acceding to his demands by brandishing the sword of punishment under the criminal law, than in any genuine desire to punish on behalf of the public a crime committed. The predominant purpose is to further that ulterior motive and that is when the High Court steps in...”

18. It was therefore appreciated in R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001 that:

“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable”.

19. In this case apart from simply stating that the Respondents are investigating a matter of obtaining money by false pretence, the Respondents have not disclosed when the report was made, by who it was made, what the nature other report was about, what action they took in order to investigate the same, whether they took statements from those concerned and whether there was any conclusion arrived at by them.

20. Whereas Article 157(10) of the Constitution provides that the Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority, Article 157(11) provides:

In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.

21. Apart from that, section 4 of the Office of Public Prosecutions Act, No. 2 of 2013 provides:

In fulfilling its mandate, the Office shall be guided by the Constitution and the following fundamental principles—

(a) the diversity of the people of Kenya;

(b) impartiality and gender equity;

(c) the rules of natural justice;

(d) promotion of public confidence in the integrity of the Office;

(e) the need to discharge the functions of the Office on behalf of the people of Kenya;

(f) the need to serve the cause of justice, prevent abuse of the legal process and public interest;

(g) protection of the sovereignty of the people;

(h) secure the observance of democratic values and principles; and

(i) promotion of constitutionalism.

22. It is therefore clear that the terrain under the current prosecutorial regime has changed and that the discretion given to the DPP is not absolute but must be exercised within certain laid down standards provided under the Constitution and the Office of the Director of Public Prosecutions Act. Where it is alleged that these standards have not been adhered to, it behoves this Court to investigate the said allegations and make a determination thereon. To hold that the discretion given to the DPP to prefer charges ought not to be questioned by this Court would be an abhorrent affront to judicial conscience and above all, the Constitution itself. I associate myself with the sentiments expressed in Nakusa vs. Tororei & 2 Others (No. 2) Nairobi HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565 to the effect that :

“the High Court has a constitutional role as the bulwark of liberty and the rule of law to interpret the Constitution and to ensure, through enforcement, enjoyment by the citizenry of their fundamental rights and freedoms which had suffered erosion during the one party system…In interpreting the Constitution, the Court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry and modern trend. The point demonstrated in the judgement of Domnic Arony Amolo vs. Attorney General Miscellaneous Application No. 494 of 2003 is that interpretation of the Constitution has to be progressive and in the words of Prof M V Plyee in his book, Constitution of the World: “The Courts are not to give traditional meaning to the words and phrases of the Constitution as they stood at the time the Constitution was framed but to give broader connotation to such words and connotation in the context of the changing needs of time…In our role as “sentinels” of fundamental rights and freedoms of the citizen which are founded on laisez-faire conception of the individual in society and in part also on the political – philosophical traditions of the West, we must eschew judicial self-imposed restraint or judicial passivism which was characteristic in the days of one party state. Even if it be at the risk of appearing intransigent “sentinels” of personal liberty, the Court must enforce the Bill of Rights in our Constitution where violation is proved, and where appropriate, strike down any provision of legislation found to be repugnant to constitutional right.”

23. Whereas this is not the forum to determine the applicant’s innocence or culpability, the DPP owes this Court a duty of placing before this Court material upon which this Court can feel that he is justified in mounting the prosecution. Where therefore it is clear that the discretion is being exercised with a view to achieving certain extraneous goals other than those legally recognised under the Constitution and the Office of the Director of Public Prosecutions Act, that would, in my view, constitute an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion. As was held by Wendoh, J in Koinange vs. Attorney General and Others [2007] 2 EA 256:

“Under section 26 of the Constitution the Attorney General has unfettered discretion to undertake investigations and prosecute. The Attorney Generals inherent powers to investigate and prosecute may be exercised through other offices in accordance with the Constitution or any other law. But, if the Attorney General exercises that power in breach of the constitutional provisions or any other law by acting maliciously, capriciously, abusing the court process or contrary to public policy the Court would intervene under section 123(8) of the Constitution and in considering what constitutes an abuse of the court process the following principles are relevant: (i) Whether the criminal prosecution is instituted for a purpose other than the purpose for which it is properly designed; (ii) Whether the person against whom the criminal proceedings are commenced has been deprived of his fundamental right of a fair trial envisaged in the provisions of the constitution; (iii) Whether the prosecution is against public policy.”

24. Therefore the police are expected to be professional in the conduct of their investigations and ought not to be driven by malice or other collateral considerations. Malice, however, can either be express or can be gathered from the circumstances surrounding the prosecution. A prosecution can either be mounted based on an offence committed in the presence of law enforcement officers or by way of a complaint lodged by a person to the said officers or agencies. However, the mere fact that a complaint is lodged does not justify the institution of a criminal prosecution. The law enforcement agencies are required to investigate the complaint before preferring a charge against a person suspected of having committed an offence. In other words the police or any other prosecution arm of the Government is not a mere conduit for complainants. The police must act impartially and independently on receipt of a complaint and are expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect.

25. The National Prosecution Policy, revised in 2015 provides at page 5 that:-

Public Prosecutors in applying the evidential test should objectively assess the totality of the evidence both for and against the suspect and satisfy themselves that it establishes a realistic prospect of conviction. In other words, Public Prosecutors should ask themselves; would an impartial tribunal convict on the basis of the evidence available?”....

26. Similarly, in Mohammed Gulam Hussein Fazal Karmali & Another vs. Chief Magistrate’s Court Nairobi & Another[2006]eKLR whereNyamu, J examined the policy considerations for halting criminal proceedings, noting that the court has two fundamental policy considerations to take into account which were enunciated in the case of M. Devao vs. Department of Labour (190) in sur 464at 481 as:

“The first is that the public interests in the administration of justice require that the court protects its ability to function as a court of law, by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court processes may lend themselves to oppression and injustice…the court grants a permanent stay in order to prevent the criminal process from being used for purposes alien to the administration of criminal justice under the law. It may intervene in this way if it concludes that the court processes are being employed for ulterior purposes or in such a way as to cause improper vexation and oppression.”

27. In this case, the Respondents have failed to show on what basis they arrested the 2nd applicant. They have not even placed before the Court the complainant’s statement on the basis of which they decided to prefer charges against the 1st applicant.

28. Clearly there is no material on the basis of which this Court can find that the Respondents have a prosecutable case.

29. I find that to invoke criminal justice system to achieve collateral purposes cannot be permitted. In my view the invocation of criminal process towards that end reeks of abuse of power. As was held in Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007] 2 KLR 240 while citing Reg vs. Secretary of State for the Environment Ex Parte NottinghamShire Country Council[1986] AC:

“A power which is abused should be treated as a power which has not been lawfully exercised…A public authority must not be allowed by the court to get away with illogical, immoral or an act with conspicuous unfairness as has happened in this matter, and in so acting abuse its powers. In this connection Lord Scarman put the need for the courts intervention beyond doubt in theex-parte Prestonwhere he stated the principle of intervention in these terms: “I must make clear my view that the principle of fairness has an important place in the law of judicial review: and that in an appropriate case, it is a ground upon which the court can intervene to quash a decision made by a public officer or authority in purported exercise of a power conferred by law.” The same principle was affirmed by the same Judge in the House of Lords inReg vs. Inland Revenue Commissioners, ex-parte National Federation of Self Employed and Small Business Ltd[1982] AC 617that a claim for judicial review may arise where the Commissioners have failed to discharge their statutory duty to an individual or have abused their powers or acted outside them and also that unfairness in the purported exercise of a power can be such that it is an abuse or excess of power. In other words it is unimportant whether the unfairness is analytically within or beyond the power conferred by law: on either view, judicial review must reach it. Lord Templeman reached the same decision in the same case in those helpful words: “Judicial review is available where a decision making authority exceeds its powers, commits an error of law commits a breach of natural justice reaches a decision which no reasonable tribunal could have reached or abuses its powers.” Abuse of power includes the use of power for a collateral purpose, as set out inex-parte Preston,reneging without adequate justification on an otherwise lawful decision, on a lawful promise or practice adopted towards a limited number of individuals. I further find as in the case ofR (Bibi) vs. Newham London Borough Council[2001] EWCA 607, [2002] WLR 237, that failure to consider a legitimate expectation is a failure to consider a relevant consideration and this would in turn call for the courts intervention in assuming jurisdiction and giving the necessary relief.”

30. In Githunguri vs. Republic [1986] KLR 1 at page 18 and 19 a three Judge bench High Court constituted of Ag. Chief Justice Madan and Justices Aganyanya and Gicheru expressed themselves as follows:

“But from early times… the Court had inherently its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the Court had the right to protect itself against such an abuse…The power seemed to be inherent in the jurisdiction of every Court of Justice to protect itself from the abuse of its own procedure...every Court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the Court…Mr Chunga argued that to grant the application would be tantamount to curtailing or interfering with the powers of the Attorney-General under section 26 of the Constitution. This argument of his compels us to say that he kept freewheeling for a long time before us because perhaps he did not understand the real purport of the application. No one has made any challenge to the powers of the Attorney-General, nor would any one succeed if he were to say that the Attorney-General’s powers under section 26 can be interfered with. What this application is questioning is the mode (emphasis ours) of exercising those powers…No one will succeed in convincing us that the Court does not have inherent powers to exercise supervisory jurisdiction over tribunals and individuals acting in administrative or quasi-judicial capacity…A prosecution is not to be made good by what it turns up. It is good or bad when it starts. The long and short of it is that in our opinion it is not right to prosecute the applicant as proposed.”

31. In Mohammed Gulam Hussein Fazal Karmali & Another vs. Chief Magistrate’s Court Nairobi & Another[2006]eKLR whereNyamu, J examined the policy considerations for halting criminal proceedings, noting that the court has two fundamental policy considerations to take into account which were enunciated in the case of M. Devao vs. Department of Labour (190) in sur 464at 481 as:

“The first is that the public interests in the administration of justice require that the court protects its ability to function as a court of law, by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court processes may lend themselves to oppression and injustice…the court grants a permanent stay in order to prevent the criminal process from being used for purposes alien to the administration of criminal justice under the law. It may intervene in this way if it concludes that the court processes are being employed for ulterior purposes or in such a way as to cause improper vexation and oppression.”

Order

32. In the premises, I find merit in this application and issue an order of Prohibition directed to the Respondents, their servants, employees or agents prohibiting them from arresting, harassing, arraigning or charging the applicants in court or undertaking any further action and interference, in violation or infringement of the Applicants’ freedoms or fundamental rights whatsoever. I further grant an order of Certiorari removing into this Court to quash the decision and action by the Respondents to arrest, charge and arraign the Applicants in court on 10th October, 2016 which decision is hereby quashed. Since the Respondents admit that the 2nd applicant was released n Kshs 20,000. 00 cash bail, I hereby direct that the said sum be refunded to the 1st Applicant.

33. The costs of this application are awarded to the applicants.

34. Orders accordingly.

Dated at Nairobi this 18th day of July, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Gichohi for the applicants

CA Mwangi